Findings Of Fact Respondent, Wesley Ash, currently holds license number CP C015871 issued by the Construction Industry Licensing Board to authorize Ash to engage in the pool contracting business. Dodd Complaint (Count I). Respondent, Wesley Ash, doing business as Wada Pools, Inc., contracted with Jerry Dodd on or about June 17, 1981, to build a pneumatic concrete pool with skimmer and recirculation system. The contract did not include installation of the concrete deck around the pool. Dodd decided to contract with another independent contractor to install the deck at a lower price than Ash wanted for the job. Ash completed his work by approximately August 1981. He installed the concrete pool shell, finished the inside surface and installed tile along the water line. He then attached the skimmer assembly, plumbing it so that it was level and attaching it to the concrete pool shell by means of the skimmer's PVC plumbing piping. After Ash finished his work, Dodd's other contractor came behind Ash. He used some of the dirt Ash had excavated from the pool site to raise the ground surrounding the pool by approximately six inches above grade. He then poured the concrete deck but failed to encase the skimmer assembly with the deck concrete in the process of pouring the concrete deck. It was not Ash's practice to make any special arrangements to stabilize the skimmer assembly when he installed both pool and concrete deck. He relies on the skimmer assembly plumbing to stabilize the skimmer assembly until the concrete deck is poured. In pouring the concrete deck, Ash encases the skimmer assembly with the deck concrete to stabilize the skimmer assembly and prevent leakage. In the case of the Poland pool (paragraphs 17 and 22, below), Ash used this method to install both the pool and the concrete deck, and Poland has had no complaint of leakage at the skimmer (nor was there any evidence of leakage at the skimmer). In the case of the Priests' pool (paragraphs 11 through 13, below), Ash followed the same procedures as he did with the Dodd pool, and another contractor poured the concrete deck. As with the Poland pool, there have been no complaints (nor was there any evidence) of leakage at the skimmer. Within approximately one and one-half years after installation of the Dodd pool, Dodd began to notice what he thinks is a leak in his pool. The water level in the Dodd pool drops approximately one-quarter inch per day. But the Department's own expert witness conceded that water loss of between one-eight and one-quarter inch can be explained by evaporation. It was not proved that the Dodd pool is leaking at all. If there is a leak causing a small increment of water loss above loss through normal evaporation, the leak would have to be very small and would be very difficult to detect. Ash and others have tried but have been unable to find a leak at the skimmer of Dodd pool. In approximately summer 1985, Dodd himself dug a hole under the concrete deck to expose the bottom of the skimmer assembly. The excavation revealed an unusual amount of moisture that might be the result of a leak at the skimmer. It also revealed that the contractor who poured the Dodd concrete deck did not encase the skimmer assembly as Ash had thought he would. The Department's expert - a professional engineer with a B.S. degree in civil engineering, an M.S. degree in structural engineering and a Ph.D. degree in environmental engineering - gave his opinion that a residential pool skimmer assembly should be either (1) encased with the concrete of the pool shell or (2) encased with deck concrete which is structurally tied to the concrete pool shell. He opined that the latter method would require either a very rough surface on the pool shell concrete or steel extending from the pool shell in order for the structural tie to be accomplished. But he also conceded that it is possible for deck concrete encasing a skimmer assembly to be sufficient to stabilize the skimmer assembly even without taking any extra measures to accomplish a structural tie. There was no evidence that any building code would require a pool contractor to take these measures to accomplish a structural tie between the pool shell and skimmer assembly. Nor was there any evidence that a reasonably prudent pool contractor (as opposed to a professional engineer) would be expected to take these measures. Based on this evidence, together with all the other evidence taken as a whole, the Department did not prove that Ash was either incompetent or grossly negligent in not taking any extra measurers to accomplish a structural tie between the concrete pool shell and the skimmer assembly. Based on the evidence in this case, the contractor Dodd hired to pour the concrete deck was either incompetent or grossly negligent (assuming he was even a licensed pool contractor a fact not shown by the evidence.) He did not encase the skimmer assembly with the deck concrete, allowing it to "float" unprotected in the fill under the concrete deck. Settling of the fill could have caused the deck to settle and crack, moving the skimmer assembly and causing a small leak. Ash may have been able to prevent this by warning the contractor to be sure to encase the skimmer assembly with deck concrete when he poured the concrete deck. But there was no evidence that Ash had a duty to advise the other independent contractor Dodd hired or was responsible for the other contractor's incompetence or gross negligence. Ash's failure to advise the other contractor was not incompetence or gross negligence on Ash's part. Dodd has no other complaints about the pool Ash built for him. Priests' Complaint (Count II). On or about October 11, 1984, Ash contracted with Joseph and Rita Priest to build them a pneumatic concrete pool. The Contract included a warranty that the labor, materials and workmanship would be free of defects for one year and that the shell would be structural sound and capable of holding the water for ten years. Like Dodd, the Priests contracted with another independent contractor to install the concrete deck around the pool. Ash was responsible only for placement of decorative "river rock" on top of the deck. Ash finished his work in February 1985. Like Dodd, the Priests complained of water loss from the pool although the Priests noticed the water loss sooner than Dodd (approximately March, 1985). The water level was dropping approximately one-quarter inch per day more than it was dropping in a bucket used as a control. In response to the complaint, Ash sent his employees to the Priests' pool on several occasions. They found no leak at the skimmer. To determine whether the pool's "caretaker system" 1/ was leaking, Ash's employees plugged all but one pair of the caretaker heads. After waiting a period of days, they would try to see whether the rate of water loss changed. They tested all four pairs of caretaker heads on the bottom of the pool and the pair in the spa attached to the pool. No leaks could be found. They did not replace the last two (in the spa), and Mr. Priest had to replace them. As with the Dodd pool, the Department did not prove that the Priests' pool is leaking at all. The Priests continue to complain of water loss of approximately one-quarter inch per day, within the range of water loss from normal evaporation. As with the Dodd pool, a leak responsible for a small increment of water loss above water loss from normal evaporation would be very small and difficult to find, especially if the leak were in the caretaker heads or pipes under the pool leading to the heads. Now the Priests suspect a water leak at the filter. But the Department's expert witness could not find a leak there large enough to account for much water loss. The minor leak at the filter is a normal maintenance item for a pool as old as the Priests' pool. There was no evidence how long it has existed, and there was no evidence that the Priests ever told Ash there was a leak at the filter. The Priests now also complain that one of the caretaker heads does not re-seat properly. But this has nothing to do with the leakage complaint to which Ash is charged with not reasonably responding. Taken as a whole, the evidence did not prove that Ash committed misconduct or deceit by failing to make reasonable response to warranty service requests within a reasonable time, as charged. Nor does the evidence prove misleading or untrue representations, gross negligence, incompetence or fraud in connection with the Priests' pool, as charged. Poland Complaint (Count III). On or about December 9, 1981, Ash entered into a contract with James Poland to build Poland a pneumatic concrete pool and concrete deck. Poland contracted with another independent contractor to build a screen enclosure around the pool. Before construction began, one of Ash's employees asked Poland to sign an addendum to the contract for an additional $235 to pay for foundation footers required to comply with Lee County building code provisions for the screen enclosures. Before Ash signed the initial Poland contract on December 9, 1981, he was unaware of the Lee County Aluminum Code, adopted March 18, 1981. The code requires eight inch foundation footers for "aluminum additions." Another part of the code addresses "screen enclosures with screen roofs known to the industry as birdcage swimming pool enclosures." The language of the code is not explicit that screen swimming pool enclosures are required to meet the foundation requirements for "aluminum additions," and at first Lee County did not interpret the code that way. With a change of personnel in code enforcement, Lee County began to interpret the code that way, and screen swimming pool enclosures Ash had under construction began to fail building inspection for inadequate foundation footers. Ash inquired why and was told about the aluminum code and how it was being interpreted. Ash argued that the interpretation was erroneous but, failing to dissuade enforcement personnel, began to comply. As part of his compliance efforts, Ash had his employees try to secure the contract addendum from Poland. Poland refused to sign the contract addendum, insisting on an opportunity to verify that the additional foundation footers were indeed new building code requirements. There still is a dispute between the parties whether Poland ever agreed to pay the additional $235 after he verified that the footers were being required. (He never signed the contract addendum.) But, in any event, the evidence did not prove that Ash was incompetent, grossly negligent, deceitful or guilty of fraud or misconduct in connection with the additional $235 charge. 2/ There was some evidence that Ash did not in fact comply with the Lee County Aluminum Code, as he was told it was being interpreted, in his construction of the Poland pool deck. In two places the foundation footers were 6 and 7 inches - deeper than the four-inch normal thickness of a concrete pool deck but short of the eight-inch requirement. But Ash was not charged with failure to comply with the foundation footer requirement. He had no legally sufficient notice that he should be prepared to defend against that charge and was not prepared to defend against that charge. Therefore, no finding is made whether Ash complied with the Lee County Aluminum Code. Ash performed the Poland contract between approximately January 27 and February 26, 1982. In September, 1985, Poland began to notice that some of the tile Ash installed at the waterline around the perimeter of the pool was coming loose. As explained by the Department's expert witness, the concrete deck settled in places, cracking slightly and rotating over the fulcrum created by the wall of the concrete shell of the pool. The rotating action pulled up on the tile attached to the inside of the pool wall in places, loosening the tile. In all, less than 10 percent of the 77 foot perimeter of the Poland pool experienced problems with loose tile. The loose tile easily can be removed and replaced. The minor deck cracking and loose tile problems at the Poland pool are within the normal range for a competently constructed pool under normal conditions of ground settlement. The evidence did not prove that Ash improperly installed the pool deck or that he was incompetent or grossly negligent in the construction of the Poland pool and deck. Besides the loose tile and minor cracks in the concrete deck, the Poland pool had no apparent defects. There also was evidence that the Poland pool was finished with a coating of marcite on the inside surface of the pool shell which was mottled gray in color instead of white. Poland complained persistently about the marcite3 and insisted that Ash make it white. But the discolored marcite was a factory defect of which Ash had been unable to know before he used it. There is no way to make mottled gray marcite white. Ash tried to explain this to Poland but the customer would not be satisfied. Taken as a whole, the marcite evidence did not prove that Ash was incompetent, grossly negligent, deceitful or guilty of fraud or misconduct. Nor does the evidence prove any of those violations for failure to cure the marcite problem under warranty. First, as already stated, there was no cure. Second, Ash and Poland also had a running dispute whether Poland had paid the full contract price, including the additional $235 for foundation footers, so as to entitle him to any warranty repairs. In light of this genuine dispute, failure to do warranty work, if otherwise a reasonable request, still could not be found to be misconduct, fraud or deceit.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing the Amended Administrative Complaint that has been filed against Respondent, Wesley Ash, in these cases. DONE AND ORDERED this 9th day of December 1986, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1986.
The Issue The administrative complaint filed on September 17, 1987 alleges that in a residential pool contracting job Respondent Martin ". . . exhibited financial mismanagement, misconduct, or diversion, in violation of 489.129(1)(h), (m) . . . [and] failed to perform in a reasonably timely manner, and/or abandoned said job, in violation of 489.129(1)(m), (k)." The issue is whether Martin committed those violations, and if so, what disciplinary action is appropriate.
Findings Of Fact At all times relevant, Kenneth Martin was licensed in the State of Florida as a registered commercial pool contractor, holding license number RP 0021608. His license is currently in inactive status. Martin was President of Adair Pools, Inc., the corporation under which he conducted his pool construction business. In early July 1986, Adair Pools contracted to build a residential pool for Paul and Cynthia Pajak at 8304 Helena Drive in Orange County, Florida. The pool was to be kidney-shaped, approximately 14 feet by 30 feet, with a waterfall and a detached spa. The contract amount of $11,571.00 expressly excluded the deck, electrical work and screening, although the written contract included a sheet describing the specifications for the excluded work, recommended contractors, and estimated costs. This sheet and the pool contract itself clearly indicated that these items were not the responsibility of the pool company and were not included in the contract price. Work commenced in July, shortly after the contract was signed. Although the contract did not specify a completion date, Martin concedes that the pool should have taken no more than four to eight weeks to complete. The Pajaks had planned a Labor Day party and were told by Adair's employees there would be no problem getting their pool finished for the party. The pool was not finished by Labor Day. After the pool was dug, shot with concrete and tiled, someone determined that the spa was supposed to have been raised. In attempting to raise the spa and to change the water jets, the workers cracked the shell of the spa and had to replace it. Until the problems with the spa, the Pajaks felt that the construction progress was reasonable and smooth. At this point, sometime around Labor Day, the problems began. Adair delayed in paying Shotcrete Pools, the subcontractor for the concrete shell, because Adair felt it was Shotcrete's fault that the spa was cracked. Shotcrete notified the Pajaks that a lien would be placed on the property if they were not paid. The notice to owner is dated November 3, 1986. Eventually Adair paid Shotcrete and its other subcontractors for the Pajak work and no lien was filed. The evidence does not reflect a clear sequence of events, but between Labor Day and February or March 1987, little progress was made to finish the pool. Martin's supervisor left and Martin's brother took over. The Pajaks kept calling Martin and were always assured that the job would be completed. Martin admits that the company at this time was in serious financial trouble because it was not being paid for a large commercial job that it had undertaken. On December 10, 1986, Mrs. Pajak's brother-in-law, an attorney, sent Martin a demand letter, giving a 10-day deadline for completion of the work. Martin and his brother met with the attorney and assured him the job would be finished. In spite of the problems, the Pajaks continued working with Martin and paid the full contract price, less the $100.00 that was to be paid when the pool was filled. On March 5, 1987, Martin informed the Pajaks that they should have the deck poured so that Adair could finish the pool. The Pajaks were not satisfied that the pool was ready for the deck as there were leaks in the waterfall, debris was all over the yard and the spa tile work looked messy. In Martin's opinion those items were his company's responsibility, but were part of the finishing to be done after the deck was poured and the pool was lined with marblelite. On March 21, 1987, the Pajaks contracted with another pool company for $4450.00 to finish their pool. Martin denies that Adair abandoned the job, but admits that it took an inordinate amount of time. The Pajaks did not allow him to finish the cleanup, the interior coating and the pool start up because they contracted with someone else. Martin did not contest that the waterfall leaked or that extensive cleanup needed to be done, but disputed that this work should be done before the deck was poured. He contended that the leaks in the waterfall would have been fixed when the finish was done. Martin estimates that between 1974 and 1986, his company completed over fourteen hundred residential pools and approximately five hundred large commercial pools. Martin has been active on various local pool construction industry boards and has no record of prior disciplinary action against his license.
Recommendation Based upon the foregoing, it is, hereby, RECOMMENDED: That Kenneth Martin be found guilty of misconduct, in violation of Section 489.129(1)(m), Florida Statutes, not guilty of the other violations with which he is charged, and that he be required to pay an administrative fine of $500.00. DONE and RECOMMENDED this 2nd day of August, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1988. COPIES FURNISHED: David E. Bryant, Esquire 220 East Madison Street, Suite 530 Tampa, Florida 33602 Kenneth R. Martin 3225 North Glenn Drive Orlando, Florida 32806 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact Atlas Pools, Inc., contracted with Mr. and Mrs. Jerry Thompson in May, 1978, to construct a swimming pool on the Thompson property for a completed price of $5,940. Work ceased in mid-July, 1978, by which time the Thompsons had paid Atlas Pools $5,643. The Thompsons hired another pool contractor to complete the project at additional cost in excess of $2,000. Atlas Pools contracted with Mr. and Mrs. Dennis Perry in June, 1978, to construct a swimming pool on the Perry property for a completed cost of $5,770. Work ceased in late July, 1978, after the Perrys had paid Atlas Pools $5,474.50. The Perrys completed the project through self-help and use of another pool contractor at a further cost of $1,566. Atlas Pools contracted with Mr. and Mrs. Thomas Wolters in June, 1978, to construct a swimming pool on the Wolters' property for a completed cost of $6,980. Work ceased in mid-July, 1978, after the Wolters had paid Atlas Pools $6,631. The Wolters completed the pool through self help at an additional cost in excess of $1,300. Atlas Pools contracted with Mr. and Mrs. Albert Sentman in June, 1978, to construct a spa on the Sentman property for a completed cost of $5,500. The Sentmans paid Atlas Pools a $550 deposit after which the spa was delivered but not installed. The Sentmans completed the project by other means at an additional cost of $6,137. Respondent abandoned each of the above projects without notice to the customer, who ultimately learned of the company's bankruptcy from a third party source. Each of the four projects described above was completed at a final cost to the purchaser in excess of $900 over the contract price. The company filed a Voluntary Petition of Bankruptcy with the U.S. District Court, Middle District of Florida, on August 1, 1978. Thereafter, on March 7, 1979, the Brevard County Contractors Licensing Board revoked the certificate held by Atlas Pools for a minimum period of one year, with the requirement that financial rehabilitation be demonstrated as a condition of reinstatement. At the time of bankruptcy, Respondent was president of Atlas Pools, Inc., and owned one-third of the stock. He was, at all times relevant to this proceeding, the company's only licensed pool contractor. He is currently employed in pool construction work by a licensed contractor. Proposed findings of fact were submitted by the parties. To the extent these proposed findings have not been adopted herein or are inconsistent with the above findings, they have been specifically rejected as irrelevant or not supported by the evidence.
Recommendation Based on the foregoing, it is RECOMMENDED: That Pool Contractor's License No. RP 0018040 issued to Crawford L. Grove, be suspended until Respondent demonstrates compliance with the financial responsibility standards established by Section 489.115, Florida Statutes (1979). DONE AND ENTERED this 29th day of October, 1980, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of October, 1980.
The Issue The issue presented is whether Petitioner's application for a variance at the Sunrise Civic Center wading pool should be granted.
Findings Of Fact In conjunction with the City of Sunrise constructing its multi-purpose swimming pool at its Civic Center, Patricia Riley, an employee of the Broward County Health Department, made a site inspection on January 5, 2005. While she was conducting her inspection, she noticed that the fence between the swimming pool which was under construction and the existing wading pool had been removed and apparently was being replaced. She noticed that two columns for the new fence were large, and they encroached on the required ten-foot deck perimeter around the existing wading pool although the fence itself did not. She told Manuel Synalovski, who was present, to seek a variance for the columns, since she considered that the encroachment was a minor deviation or construction error. Synalovski applied for a variance for the deviation. The variance was approved by the Advisory Review Board for Swimming Pools and Bathing Places on March 9, 2005, and then by Respondent Department of Health on March 28, 2005. On June 16, 2005, Riley again went to inspect the swimming pool. While doing so, she noticed that there were two planters near the wading pool. Each planter was surrounded by an approximately-square concrete curb approximately six inches high. A palm tree had been planted in the center of each of the two planters. Each of the two planters extended into the required ten-foot deck perimeter around the wading pool. However, the palm trees themselves are ten feet from the pool, and the deck extends for 60-70 feet beyond the planters. On June 24, 2005, Synalovski filed another application for a variance relating to the two planters. The Broward County Health Department recommended that that variance be approved because the planters should not create a hazard for the users of the wading pool which would be operated by the City under lifeguard supervision but that the City should be fined $500 for the obstructions because it was the second request for a variance related to the wading pool. The Advisory Review Board for Swimming Pools and Bathing Places thereafter recommended denial because the failure to provide a ten-foot-wide deck around 50 percent of the wading pool might have a negative impact on the health and safety of pool patrons. The Department of Health advised the City in a letter dated July 25, 2005, that it concurred with the recommendation of the Advisory Review Board. The construction plans for the multi-purpose swimming pool reflected the existing wading pool, contained notes referring to planters, and showed boxes where the planters would be placed. Similarly, the drawing submitted with the first variance application showed the planters at the existing wading pool. Similarly, aerial photos taken before the first application for variance was filed showed the planters in place at the existing wading pool.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entering granting the variance and imposing a $500 fine to be paid by a date certain. DONE AND ENTERED this 7th day of February, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2006. COPIES FURNISHED: Manuel Synalovski Synalovski Gutierrez Romanik Architects, Inc. 3950 North 46th Avenue Hollywood, Florida 33021 Judith C. Elfont, Esquire Department of Health 2421-A Southwest Sixth Avenue Fort Lauderdale, Florida 33315-2613 Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Count I: Whether Rule 424.2.17.1.9 of the Florida Building, Code, through an amendment of Rule 9B-3.047, Florida Administrative Code, is an invalid exercise of delegated legislative authority because it: (a) enlarges, modifies, or contravenes the statute; (b) exceeds the statutory rule-making authority of the Florida Building Commission; (c) is arbitrary and capricious; and/or (d) is not based on competent substantial evidence. Count II: Whether this Rule was adopted contrary to, and in violation of, the Florida Building Commission's stated rule- making procedure due to a prior settlement. Count III: Whether, with regard to this Rule, the Florida Building Commission failed to adopt a less costly regulatory alternative; and Count IV: Whether Chapter 515, Florida Statutes, is unconstitutional.1/
Findings Of Fact The Code is a unified statewide set of building codes authorized by Chapters 98-287, 2000-141, 2001-186, 2001-372, and 2002-1, Laws of Florida. The Commission is the state agency authorized by statute to adopt, amend, promulgate and maintain the Code. The rule under challenge is Section 424.2.17.1.9 of the Florida Building Code which provides: All doors and windows providing direct access from the home to the pool shall be equipped with an exit alarm complying with UL2017 that has a minimum sound pressure rating of 85dBA at 10 feet and is either hard-wired or of the plug-in type. The exit alarm shall produce a continuous audible warning when the door and its screen are opened. The alarm shall sound immediately after the door is opened and be capable of being heard throughout the house during normal household activities. The alarm shall be equipped with a manual means to temporarily deactivate the alarm for a single opening. Such deactivation shall last no longer than 15 seconds. The deactivation switch shall be located at least 54 inches above the threshold of the door. Exceptions: Screened or protected windows having a bottom sill height of 48 inches or more measured from the interior finished floor at the pool access level. Windows facing the pool on floor above the first story. Screened or protected pass-through kitchen windows 42 inches or higher with a counter beneath. All doors providing direct access from the home to the pool must be equipped with a self-closing, self-latching device with positive mechanical latching/locking installed a minimum of 54 inches above the threshold, which is approved by the authority having jurisdiction. Section 424.2.17.1.9, above, was adopted by the Commission by reference when it adopted Rule 9B-3.047, Florida Administrative Code. The Florida Administrative Code indicates this amendment to Rule 9B-3.047, also adopted the November 6, 2001, Florida Building Code and took effect December 16, 2001.4/ Previous amendments to Rule 9B-3.047, Florida Administrative Code, had been effective on November 28, 2000, and February 7, 2001. Although several portions of the rule were addressed at hearing, see infra., the main thrust of this rule challenge is that Petitioner and Intervenor contend that the rule discriminates against battery-powered alarms in favor of hard- wired or plug-in alarms for doors and windows accessing a swimming pool. Prior drafts of 424.2.17.1.9 and prior provisions of the Standard Building Code and other swimming pool codes relating to exit alarms do not require that exit alarms be "hard-wired" or "plug-in" type alarms. The Standard Building Code does not eliminate battery-powered exit alarms as a means for limiting access to swimming pool areas. No state besides Florida has eliminated them as an option. The rule only applies to new pools or new home construction. FPSA is a non-profit statewide construction trade association of 850 company members, with 10,000 employees, whose membership includes contractors engaged in swimming pool and spa construction, repair, renovation, and service, and whose work is regulated by the Code. It promotes the swimming pool industry through educational business-to-business programs and provides legislative and administrative rule monitoring and lobbying services on behalf of its membership. The subject matter of the challenged rule is within FPSA's scope of interest and activity as a trade association. Only a licensed electrician or alarm specialist can legally install hard-wired alarms. Anyone, including the homeowner; pool contractors, such as FPSA members; or a general contractor, such as Intervenor, can install a battery-powered window or door alarm for a swimming pool. The rule has resulted in members' potential customers delaying decisions to purchase swimming pools. The rule has resulted in FPSA pool contractors having to employ licensed electricians and alarm specialists to do work swimming pool contractors previously could do themselves. Awaiting completion of work by these specialists can delay the approval (Certificate of Completion) of the pool work by building inspectors. Only licensed electricians can legally install swimming pool pumps and pool lights. Awaiting completion of this work can also delay the Certificate of Completion. The type of alarm used affects the swimming pool contractor's cost of doing the project and ultimately impacts the swimming pool contractor's "bottom line." The record is silent about the cost of plug-in alarms. Installation of hard- wired devices currently on the market which would meet the requirements of the challenged rule have been costing FPSA members approximately $400.00-$500.00 for two windows and two doors. This expense may be increased by the number of doors and windows accessing the pool by approximately $150.00-$160.00 per extra door and $70.00 per extra window. Battery alarms cost about $40.00 apiece. Intervenor is a member of the Florida Home Builders' Association. He is a Florida-licensed general contractor. As such, he is required to comply with the Code. In recent years, he has operated through a franchise agreement with Arthur Rutenberg Homes. Ninety-eight percent of his business is construction of new, custom-built, single family residences. Approximately one-third of the homes Intervenor builds include swimming pools as an amenity. Most of his homes range in price from $300,000 to $1,200,000. Intervenor usually hires swimming pool installation sub-contractors, such as members of FPSA, who obtain a separate permit for construction of any pool. Intervenor leaves it to the swimming pool contractor to call for inspections and to see to it that the pool is compatible with all existing building codes, but Intervenor has ultimate responsibility for his new residences' final Code compliance. For a new home, Intervenor usually subcontracts to have hard-wired pool alarm systems installed for approximately $695.00 for two doors and four windows in conjunction with a home security system which itself costs approximately $695.00. This expense can be increased by the number of doors and windows accessing the pool. When a hard-wired alarm is installed in a house under construction after drywall has been installed, Intervenor has to tear out the drywall so the wiring for the alarm can be run in, and then he must re-install the drywall. This method becomes necessary in the few older homes he upgrades with a swimming pool and other amenities or where a new home customer decides to install a pool in mid-construction of the house after further financing has been obtained. This method and expense would not be incurred if battery-powered alarms were allowable under the Code. During the years 2000-2001, the Florida Building Commission was engaged in a marathon rule adoption procedure designed to integrate into the Code, and thereby render uniform, all the competing local building codes within the State of Florida. The purpose thereof was to fulfill the intent of the Florida Legislature that once a uniform basis was established, any amendments to specific components, such as 424.2.17.1.9, would thereafter proceed on triennial or annual cycles. To reach a uniform starting point for the rule amendments and cycles, enabling or implementing statutes were frequently amended by the Legislature to extend their effective dates so as to coincide with the Commission's adoption of the full state- wide Code, which ultimately took effect March 1, 2002. Rule- making, pursuant to Chapter 120, Florida Statutes, continued throughout the various time frames of the statutory amendments. As of June 8, 2001,5/ Section 44, Chapter 2001-186, Laws of Florida, directed that: The Commission shall adopt no amendments to the Florida Building Code until after July 1, 2002, except for the following: emergency amendments, amendments that eliminate conflicts with state law or implement new authorities granted by law, and amendments to implement settlement agreements executed prior to March 1, 2002. (Emphasis added) Section 25, Chapter 2001-186, Laws of Florida, also directed, in pertinent part, that: Further, the Florida Building Code must provide for uniform implementation of Chapters 515.25, 515.27, and 515.29 by including standards and criteria for residential swimming pool barriers, pool covers, latching devices, door and window exit alarms, and other equipment required therein, which are consistent with the intent of Section 515.23.... This legislation was ultimately codified at Section 553.73(2), Florida Statutes (2002). Section 1, Chapter 2000-143, Laws of Florida, had previously set out the following specific legislative findings and intent which ultimately was codified into Section 515.23, Florida Statutes (2002).6/ Legislative findings and intent.--The Legislature finds that drowning is the leading cause of death of young children in this state and is also a significant cause of death for medically frail elderly persons in this state, that constant adult supervision is the key to accomplishing the objective of reducing the number of submersion incidents, and that when lapses in supervision occur a pool safety feature designed to deny, delay, or detect unsupervised entry to the swimming pool, spa, or hot tub will reduce drowning and near-drowning incidents. In addition to the incalculable human cost of these submersion incidents, the health care costs, loss of lifetime productivity, and legal and administrative expenses associated with drownings of young children and medically frail elderly persons in this state each year and the lifetime costs for the care and treatment of young children who have suffered brain disability due to near- drowning incidents each year are enormous. Therefore, it is the intent of the Legislature that all new residential swimming pools, spas, and hot tubs be equipped with at least one pool safety feature as specified in this chapter. It is also the intent of the Legislature that the Department of Health be responsible for producing its own or adopting a nationally recognized publication that provides the public with information on drowning prevention and the responsibilities of pool ownership and also for developing its own or adopting a nationally recognized drowning prevention education program for the public and for persons violating the pool safety requirements of this chapter. Pursuant to the foregoing amendments, which all concerned felt would take effect much sooner than they did, the Commission had the obligation to adopt amendments to the Code to implement new authorities granted by statute, which, in part, included adoption of standards and criteria for swimming pool exit alarms, provided the standards and criteria were consistent with the intent of Section 515.23, Florida Statutes. Section 1, Chapter 2000-143, Laws of Florida, also created Section 515.27, Florida Statutes, effective October 1, 2000, which provided: In order to pass final inspection and receive a certificate of completion, a swimming pool must meet at least one of the following requirements relating to pool safety features. The pool must be isolated from access to a home by an enclosure that meets the pool barrier requirements of Section 515.29; The pool must be equipped with an approved safety pool cover; All doors and windows providing direct access from the home to the pool must be equipped with an exit alarm that has a minimum sound pressure rating of 85 dB A at 10 feet; or All doors providing direct access from the home to the pool must be equipped with a self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor. (Emphasis added) One of the four statutorily permissible safety options was that all doors and windows that provide direct access from the home to the pool be equipped with an exit alarm which has a minimum sound pressure rating of 85 dB A at 10 feet. See Section 515.27(1)(c), Florida Statutes. Section 515.25(4), Florida Statutes, defines "exit alarm" as: "Exit alarm" means a device that makes audible, continuous alarm sounds when any door or window which permits access from the residence to any pool area that is without an intervening enclosure is opened or left ajar. During 2001, the Commission was mindful of Section 44, Chapter 2001-186, Laws of Florida, which had been signed by the Governor and filed on June 8, 2001. In fulfilling its mandate to adopt rules to implement the Florida Building Code, the Commission was careful to state on its tracking charts, agendas, and workshop materials that it was only considering the four exceptions for which it was permitted to adopt rules prior to July 1, 2002. The Commission employed the services of the Florida Conflict Resolution Consortium to facilitate its processes. The Consortium is an entity housed within Florida State University that is legislatively mandated to perform consensus building with regard to public policy issues. In 2001, the Commission referred issues to one of three types of subcommittee: Technical Advisory Committees (TACs), Program Oversight Committees (POCs) or Ad Hoc Committees. Ad Hoc Committees were/are comprised solely of Commission members. Public comment was received by the respective subcommittees. If an issue (proposed rule amendment) received a favorable vote by at least 75% (three quarters) of the subcommittee members, a recommendation was developed and forwarded to the Commission as a whole. A 75% (three-quarters) favorable vote of the Commission was also required to adopt a rule. The failure of a subcommittee or the Commission to take affirmative action upon an issue amounted to a rejection of that issue for incorporation into a rule, but the Commission and its subcommittee did not act on motions to deny. They only voted on motions to approve the resolution of an issue. In July 2001, the Commission, sua sponte, took up provisions related to criteria and standards for pool safety measures prescribed by Chapter 515, Florida Statutes. The Commission, with the assistance of the Florida Conflict Resolution Consortium, applied its procedures described above. Commission staff generated draft provisions integrating portions of a recommendation by the Building Officials Association of Florida, independent research and review, and the existing provisions of Section 424.2, Florida Building Code. No amendments were proposed directly to the Commission or its subcommittees from the public relating to pool safety measures on the form promulgated by the Commission for that purpose. On July 9, 2001, the Commission convened an Ad Hoc Committee meeting to consider recommendations for resolution of issues raised relating to implementation of the pool safety measure. Petitioner had representatives, one of whom was its Executive Director, Mr. Bednerik, attend the meeting and offer oral comments. It appears from the transcript of that meeting that written submissions of Petitioner's and other interested persons' concerns were also received. The draft provisions authored by Commission staff included adoption of UL2017, a standard developed by Underwriters Laboratories, and specified in Section 515.27(1)(c), Florida Statutes. At the Ad Hoc Committee meeting, FPSA's Executive Director cited the need for the Code to specify a power source for exit alarms, and specifically stated that, at the time of the meeting, some jurisdictions were allowing battery-powered alarms and some were requiring hard-wired alarms. The Ad Hoc Committee also received comment from Mr. Sparks, a building official from Sarasota. Mr. Sparks expressed a preference that exit alarms be hard-wired, and that if battery-powered alarms were to be allowed, that their use should be limited to homes for which a building permit had been pulled before October 1, 2000, the effective date of Chapter 515, Florida Statutes. The Ad Hoc Committee heard comments that batteries always ultimately fail due to limited battery life and that the date of failure cannot be predicted. The Ad Hoc Committee discussed allowing plug-in type alarms as a possible solution to difficulties with installation of a hard-wired system. Mr. Sparks informed the Committee that plug-in type alarms were available and that he had worked with manufacturers of such devices. The Ad Hoc Committee unanimously voted to recommend to the Commission, during its July 11, 2001 Rule Development Workshop, that exit alarms for new construction after the amendment's effective date be hard-wired or a plug-in type. The Ad Hoc Committee's recommendation was integrated into the proposed Code amendment for the Commission's review, by providing a complete printed copy of the proposed amendment, striking through for eliminated language, and underlining for new language being added. A Rule Development Workshop was convened by the Commission on July 11, 2001. The Ad Hoc Committee's recommendation was submitted to the Commission during the Rule Development Workshop held on July 11, 2001, as a committee report. During the Workshop, Petitioner's Executive Director offered comment to the Commission urging that requiring a retrofit of existing homes was impracticable and would not comport with the "legislative intent" expressed by one of the legislators involved with the passage of Section 515.27(1), Florida Statutes. Petitioner's Director opposed any restriction to hard-wired alarms but acknowledged that battery-powered alarms require positive action to refresh their power source. He acknowledged that Underwriters' Laboratories had attempted to mitigate this shortcoming in a chirper to alert when the battery in a battery- powered alarm runs low. Comments were heard that plug-in type alarms might be dangerous to, or deactivated, by toddlers. The Commission unanimously approved the recommendations of the Ad Hoc Committee with regard to limiting allowable power sources for exit alarms to hard-wired or plug-in types, inherently rejecting the comments of Petitioner's representative. The Commission also approved Committee recommendations allowing a temporary deactivation feature and an exception of specified windows from the requirement for alarms. The expressed purpose for these provisions was to address the practical effects of the exit alarm requirement without diminishing the intent of improved safety. The Commission noticed the Code revisions for rule adoption in the Florida Administrative Weekly published on August 3, 2001, with a hearing to be held on August 28, 2001. At the Rule Adoption Hearing on August 28, 2001, Petitioner's representative expressed his belief that it was the Legislature's intent that inexpensive battery-powered alarms be used everywhere and affirmatively stated that Petitioner would concur in the view that battery-powered alarms should be permitted in existing dwellings. Petitioner's representative also implied that the Commission had the authority to adopt UL2017. The UL2017 standard provides criteria and specifications for "residential swimming pool entrance alarms." It addresses requirements for alarms that are battery-powered, hard-wired, and plug-in. The standard was adopted by Underwriters' Laboratories and available in 1995 or 1996. It encompasses 85 dBA at 10 feet of sound pressure. Its concept of "continuous" means "not intermittent" or "not variable." It allows a seven-second delay before an alarm activates and then requires that an alarm activate immediately and continually. Evidence was adduced in the instant rule challenge hearing that none of the four protective options provided in Section 515.27(1), Florida Statutes, is required to be maintained after the final inspection or certificate of occupancy has been completed. Batteries expire or homeowners may intentionally remove them. In either situation, the alarm will not sound. One of Intervenor's witnesses described a study in which the main reason for failure of battery-powered smoke detectors is that the battery had discharged. The Florida Life Safety Code (Fire Code) permits battery-powered smoke detectors in older, existing homes, but like the challenged rule, requires hard- wired devices in new home construction. Hard-wired pool exit alarms can be disabled by a power outage or by deliberately flipping a circuit breaker. Plug-in alarms can be unplugged so as to be rendered ineffective. They also may present a danger to children or the elderly if extension cords are used. Some witnesses consider it inconsistent of the rule to require an alarm deactivation switch and a self-latching device that is 54 inches above the threshold but fail to specify that an electric plug for a plug-in door or window alarm also be 54 inches above the threshold, due to the potential for children to unplug plug-in alarms. Some witnesses at hearing complained that because Section 515.27(1)(d), Florida Statutes, specifies that a release mechanism switch for self-closing, self-latching doors is to be 54 inches above the floor and the challenged rule for door and window exit alarms specifies deactivation switches are to be at least 54 inches from the threshold, there is a variance between the rule and the statute, and the rule is confusing. However, a door's "threshold" as used in the rule, is a consistent place to measure the 54 inches from; is a spot that can be agreed upon by the contractor and inspectors; and is a designation which eliminates any confusion as to whether measurement is to begin from the outside or inside "floor," while serving the spirit of the statute. Some witnesses at hearing complained that the language "immediately after the door is opened and be capable of being heard throughout the house during normal household activities," as used in the rule is vague. However, it appears that any vagueness is cured by the inclusion of the UL2017 standard in the challenged rule. Witnesses who complained of confusion as to whether doors and screens must each be "alarmed" were not credible because the challenged rule clearly specifies "warning when the door and its screen are opened." (Emphasis supplied) Some witnesses complained that they thought the term "plug-in" could refer to installing a battery into an alarm. This concept defies both the first approved dictionary definition in evidence and common sense. There were a number of battery-powered exit alarms on the market when the rule was adopted and when it became effective which would make an audible, continuous alarm when a door or window which permits access to the pool area is opened, but there were no such hard-wired or plug-in devices available at that time. Acceptable hard-wired and plug-in alarms which meet the rule's requirements are available now. The Florida Home Builders Association (FHBA) had previously challenged unrelated proposed Code rules in DOAH Case No. 00-1252RP. That rule challenge was resolved by an October 17, 2000, Settlement Agreement, which was amended on November 1, 2001, after the case was closed. The FHBA Settlement Agreement provided that, in exchange for FHBA's dismissal of DOAH Case No. 00-1252RP, the Commission would adopt a rule setting forth a procedure for adoption by the Commission of any other new amendments to the Code, including creating a fiscal statement in connection with all proposed Code revisions; review by a TAC of all technical revisions; providing notice on the Internet of all proposed revisions; providing 45 days between the date of notice and consideration of an issue by a TAC or by the Commission; and providing a reasonable time period in which the Committee and Commission respectively would hear testimony on rule proposals. The FHBA Settlement Agreement did not require immediate application of the agreed rule promulgation procedures prior to adoption, by rule, of those rule promulgation procedures. It also did not require application of new statutory requirements to the Commission's rule promulgation procedures prior to the effective date of any new statute. The Commission did not perform a fiscal analysis/statement; have a TAC consider challenged Rule 9B-3.047 or 424.2.17.1.9; or provide 45 days' notification of Committee or Commission meetings. However, pursuant to Chapter 120, Florida Statutes, Internet notice of all proposed rules and amendments was provided. The procedures required by the FHBA Settlement Agreement, including but not limited to the requirement of a fiscal impact statement, plus additional procedures, were codified in Sections 553.73(2), 553.73(3), 553.73(6) and 553.73(7), Florida Statutes. These statutes originated in Chapter 2001-186, Laws of Florida, which was subsequently amended or superceded by other legislative action. The legislative history shows the effective dates of these statutory rule promulgation procedures was postponed to March 1, 2002. See the Conclusions of Law Also, similar rule promulgation procedures which equate with the FHBA Settlement Agreement were promulgated in Rule 9B-3.050, Florida Administrative Code, which the Florida Administrative Code states took effect on November 20, 2001.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent Henry C. Hollenbeck was licensed as a swimming pool contractor. In February of 1980, respondent, doing business as Acme Pools, entered into a contract with Loren Bjornson to construct a swimming pool at Bjornson's residence for a total purchase price of $8,300. Construction of this pool was completed on or about June 30, 1980. Respondent did not obtain a building permit for the Bjornson pool until January 5, 1981. Prior to the construction of a swimming pool in Ft. Walton Beach, a building permit is required. No inspections were performed by the City during construction of the Bjornson pool. Many items, such as the plumbing, walls, drain system, etc., cannot be adequately inspected after construction is completed and the pool is filled with water. Almost immediately upon construction of the Bjornson pool, a crack in the wall at the center of the pool appeared. This was repaired by respondent. Then, in July of 1980, the pool started losing one inch of water per day. In August, 1980, the pool started losing two inches of water per day. Mr. Bjornson repeatedly contacted respondent about this problem, but respondent did not respond to the calls because he felt that Mr. Bjornson had not paid his bills. Apparently, the financial dispute concerned work on a neighbor's driveway for which Mr. Bjornson was never billed. On three different occasions, Mr. Bjornson had not paid his bills. Apparently, the financial dispute concerned work on a neighbor's driveway for which Mr. Bjornson was never billed. On three different occasions, Mr. Bjornson retained another pool company to make repairs on his pool to prevent it from leaking. The three repair bills amounted to slightly over $200 and none of the repair jobs could be guaranteed. In order to make a guarantee, the service and sales manager of Aqua Pools estimated that repairs amounting to $11,365 would be necessary. It was his opinion that the repair work would involve a major rebuilding of the pool, including the removal of the pool deck and tiles and the reinforcement of walls. At the time of the hearing, the Bjornson pool was not presently leaking. By contract dated August 10,1979, respondent agreed to install a swimming pool for Mr. and Mrs. Walter Parker. Construction was competed in October of 1979 and leaking problems began almost immediately. Respondent came back on at least four occasions to do the repair work. The corners were patched and other repair work necessitating the complete draining of the pool was performed. Each time, the Parkers were charged for labor and parts. At the time of the hearing, the Parker pool still leaked approximately one inch per day. It was estimated that it would cost about $1,000 to repair the Parker pool adequately so that a one-year warranty against leaking could be given. Respondent testified that he did not respond to Mr. Bjornson's calls for repair work because Mr. Bjornson still owed him money. He believed the Parkers also owed him money. He felt that he could repair both pools adequately for a nominal sum of money.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner find respondent guilty of violating Sections 489.129(1)(d) and 489.129(1)(m), Florida Statutes, and suspend his pool contractor's license for a period of one (1) year. DONE AND ENTERED this 16th day of December 1981 in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December 1981. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 Henry C. Hollenbeck Rt. 1, Box 196 F-G, Circle Drive Ft. Walton Beach, Florida 32548 Mr. Samuel Shorestein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Petitioner is the Department of Professional Regulation. The Respondent is Phillip Whitaker, Jr., holder of certified pool contractor license number CP-C008325 at all times pertinent to these proceedings. He is the qualifying agent for the business known as Sunshine State Pools pursuant to requirements of Chapter 489, Florida Statutes. He is responsible for actions of that business relating to construction of the swimming pool which is the subject of this proceeding. His address of record is Miami, Florida. The customer, Ken Gibson, signed a contract with Sunshine State Pools on September 15, 1986. The contract called for construction of a residential swimming pool at 15840 S.W. 155th Avenue, Miami, Florida. The total contract price was $12,700. Testimony adduced at hearing establishes that Sunshine State Pools completed the layout of the customer's swimming pool and the excavation of soil from the proposed pool site by October 1, 1986. These tasks were accomplished under the Respondent's supervision. Metropolitan Dade County issued a building permit for construction of the swimming pool in response to a permit application bearing the signature of Phillip E. Whitaker. The permit and application are both dated October 10, 1986. At hearing, the Respondent acknowledged that initiation of construction prior to pulling the permit and termed this action an "oversight." Based on the candor, demeanor and experience of the Respondent, his explanation of the failure to timely obtain the construction permit is not credited. Initiation of construction for a swimming pool prior to obtaining permits constitutes a violation of part 301.1(n), of the South Florida Building Code and, by stipulation of the parties at hearing, the building code of Metropolitan Dade County. The Respondent was responsible for supervision of the actual pool shell construction. After completion and removal of the wood forms used in the process, steel rods or "rebar pins" required as support during the construction process were not removed. These rods extended some distance above the ground and posed a substantial hazard to Respondent's children while playing. Finally, the steel rods were removed by the customer a week after he requested the Respondent to remove them. Respondent admitted some of these reinforcements could have been left by his subordinates. Respondent admits responsibility for the "back fill" process completed on October 25, 1986. This was originally a responsibility of the customer under the contract as the party responsible for deck construction. The "back fill" process consists of compacting loose soil between the outside of the pool walls and surrounding earth by use of special tamping or pounding equipment. Under terms of the contract, the customer was responsible for construction of a sizeable two part deck surrounding at least sixty percent of the pool's circumference. There now exists a substantial height difference between the coping surrounding the perimeter of the pool and the deck or patio surface. The coping is elevated above the top of the patio approximately two to four inches. As adduced from testimony of Ben Sirkus (stipulated by both parties as an expert in swimming pools and swimming pool construction), coping along the top of the pool walls consists of flagstone rock in conformity with the contract terms. Some of the rocks are cracked. The rocky edge of the coping extends over the pool wall and has a dangerously sharp edge. The sharp edge of the coping overhang could have been avoided by cutting the flagstone coping smooth prior to installation, the acceptable practice among pool contractors. The bottom step to one set of the pool steps has a hazardous 19 inch riser as opposed to the 12 inch distance required by the building code. No hand rail is present. Hollow space under some of the coping stones are the result of either improper installation, dirty cement or sinking of the deck as a result of improper "back filling" upon completion of the pool shell. On one occasion, Respondent admitted responsibility for deficiencies in the pool coping to an employee named Rick Miro. The Respondent further stated to this employee that he intended to do nothing about the problem. Respondent was present during some, but not all, of the coping installation. The "skimmer," the apparatus by which debris is cleared from the pool water, is inoperable as a result of faulty construction of the pool. The failure of the Respondent, who admits to successful completion of approximately 2500 pools with only three complaints, to properly supervise job site activities was the major cause of the pool deficiencies identified at hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be placed on probation for a period of two years upon such terms and conditions as may be determined by the Construction Industry Licensing Board and assessed an administrative penalty in the amount of $1500. DONE AND RECOMMENDED this 29th day of February, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5053 The following constitutes my specific ruling on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings Included in finding 2. Included in finding 3. Included in finding 4. Included in findings 5, 6 and 7. Included in findings 5 and 6. Included in finding 8. Included in finding 10 with exception of hearsay statement. Included in finding 11.1 Included in finding 12. Included in finding 11. Included in finding 11. Included in finding 11. Included in finding 11. Rejected as unnecessary. Rejected as unnecessary. Included in finding 11. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark D. Press, Esquire 2250 Southwest Third Avenue 5th Floor Miami, Florida 33129 William O'Neil General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 =================================================================
Findings Of Fact At all times material hereto Respondent, George W. Boukater, was a certified general contractor, license number CG C012598, and a registered pool contractor, license number RP 0032042. Respondent was the qualifier for Swimming Pools by M.J. Donohue, Inc. (Donohue), under license number RP 0032042, from February 1979 until June 30, 1985. On July 29, 1984 Donohue contracted to construct a swimming pool at the residence of Ms. Loretta Hunley in Fort Lauderdale, Florida, for the sum of $6,400.00. Respondent, on behalf of Donohue, applied for and received the building and plumbing permits for the pool. Apart from securing the permits, Respondent had no contact with the job and never inspected its progress. By August 30, 1984, Donohue had substantially completed the pool. All that remained to be done was to marcite the pool, hook up the pool light and plumbing, and install the pumps. However, before these items could be completed it was necessary that the area surrounding the pool be backfilled, the patio poured, and the electric installed. Under the July 29, 1984 contract Ms. Hunley did not contract with Donohue for any patio, electric or fence work. She expressly retained responsibility for that work in an effort to save money on the pool construction. The area surrounding the pool was not backfilled and the patio slab approved by the Broward County Building and Zoning Department (County) until September 14, 1984. As of September 5, 1985, the fence work was still in violation of the County code. The electric work received the County's final approval on January 8, 1986. In October 1984 demands were exchanged between Ms. Hunley and Donohue. Ms. Hunley demanded that the pool be completed. Donohue demanded adequate electrical service so the pool could be pumped and cleaned for marciting, and dates when someone would be available at the premises. In November 1984 Donohue got its pumps in operation, however Ms. Hunley disconnected them in the evenings. Consequently, the pool could not be drained and cleaned to marcite it. In November 1984 Ms. Hunley ejected Donohue from the job site. Subsequently, Ms. Hunley and Donohue formally settled their dispute.
